Navigating Indigenous native title claims with research

UQ researchers are working with Indigenous Australians to document their culture and history to support Indigenous people in negotiating and delivering stronger Native Title outcomes.

By Ron Hohenhaus

UQ School of Social Science anthropologist Dr Richard Martin works with a team of researchers who specialise in Native Title and Indigenous cultural heritage protection around Australia.

“Native Title is a very difficult issue for both Indigenous and non-Indigenous Australians as a result of Australia’s past. Over the last 25 years, Native Title has sought to address the legacy of Australia’s colonial history,” Dr Martin says.

“To achieve positive outcomes, Aboriginal people and Torres Strait Islanders face the challenge of engaging with the Australian legal system to prove the continuing existence of their rights and interests, which can be very difficult and very painful for people who have experienced cultural loss and trauma as a result of colonisation.”

Dr Martin says UQ researchers have been working with communities since the inception of the Native Title Act in 1993 to help people engage with the law “without suffering further trauma and harm”.

“It is hugely important work, but it’s a real challenge also for researchers, requiring us to step outside our comfort zone in universities to work directly with Indigenous people, government, industry and the legal profession to achieve genuine change and historical justice”.

UQ’s Culture and Heritage Unit

UQ researchers are internationally recognised for their expertise in anthropology and archaeology and related fields, as well as their work through the UQCHU to slowly resolve what is a major societal issue arising out of Australia’s colonial history.

Over the past decade, UQ researchers have contributed towards the successful resolution of Native Title claims with many Aboriginal groups around Australia, particularly in Queensland, helping groups such as the Gangalidda and Garawa, Waanyi, Barada-Barna, Mithaka and Kullilli peoples.

These successful Native Title determinations recognised some exclusive and non-exclusive legal rights of Traditional Owners over thousands of square kilometres of their ancestral lands.

Dr Martin says the determinations mean that Indigenous peoples' land rights will be protected and secured in perpetuity.

“This creates significant intangible benefits in the form of solace for colonial dispossession, while assisting the prevention of further cultural and spiritual harm,” he says.

The successful resolution of Native Title claims also gives Indigenous people a better position to negotiate economic development with public and private sector stakeholders.

He spoke with passion and strong emotion about this achievement and the opportunities and challenges it presents for his generation of emerging Elders.

“A lot of them old people who gave evidence and started the whole movement passed away before this day actually come,” he said.

“But they put it there… and we’re still doing it today for future generations.”

Mr Taylor said Gangalidda and Garawa people who worked to win back control of their Country now plan to manage their land and waters to secure lasting change for future generations.

“What we brought to a lot of things is marrying our ancient traditions and our culture with modern day science to get the best outcomes on country and to look after it so it can be sustainable for many generations to come,” he said.

The Federal Court of Australia and the Australian Legal System

As well as supporting Indigenous people, UQ researchers have assisted the Federal Court of Australia, the broader legal system and society’s efforts to resolve native title proceedings.

This research has proved beneficial in producing cross-cultural accounts of traditional land tenure, and for helping to inform the resolution of disputes between Indigenous people, as well as between Aboriginal and Torres Strait Islanders and non-Indigenous respondent parties, particularly state governments.

Indigenous disputes are a major issue for the Australian Courts, with disagreement between and within claimant groups frequently resulting in drawn-out legal proceedings that cause delays as well as significant costs for disputants.

Cases such as Aplin on behalf of the Waanyi Peoples v State of Qld [2010] FCA 625 exemplify such matters.

In that matter, UQ’s Professor David Trigger gave evidence that helped the Federal Court understand the perspective of disputing Indigenous parties and allowed the Waanyi people’s native title claim to be successfully determined.

UQ researchers have also played a role in resolving other tense disputes around Australia, including in resource-rich regions such as central Queensland and the Pilbara in Western Australia, where significant financial considerations complicate these matters.

As a testimony to their impact, judges’ decisions rely extensively on and quote from expert reports prepared by UQ anthropologists, as well as the evidence they give in court as expert witnesses.

For example, Justice Dowsett credited Professor Trigger’s long research relationship with the Gangalidda and Garawa peoples and other Aboriginal groups as key evidence that led him to determine native title rights for these groups when that matter was resolved in 2015.

The Federal Court has also honoured Australian anthropologists’ contributions towards the native title system with a public event in Perth in 2016.

Associated research

Research contributing to UQCHU’s impact includes contract and applied research projects funded by Aboriginal parties and others to progress land and native title claims and protect cultural heritage.

Additionally, UQCHU has drawn on the results of academic research relating to Indigenous traditions conducted at UQ across the inquiry period.

Specific research includes Dr Richard Martin’s work with the Gangalidda and Garawa people (from 2007), the Gkuthaarn and Kukatj people (from 2010), and the Kurtijar people (from 2010), focusing on the adaptation and change of Indigenous laws and customs relating to land and waters in the Gulf Country of northwest Queensland.

Meanwhile Dr Kim de Rijke’s work addressed the same themes with Gaangalu people in Central Queensland (from 2011), and Warlangurru people in the Kimberley region of Western Australia (from 2016).

This research was commissioned by Indigenous corporations, land councils, and claimants, who thus provided leadership concerning the broad research briefs for engaging with the Australian legal system.

Regardless of the actual outcomes of a case, this research is itself invaluable.

As leading Indigenous lawyer and intellectual Noel Pearson put it in his 2014 Quarterly Essay, anthropological and other university research in this area is ‘now part of the world’s heritage’.

Through the work of Indigenous people engaging with UQ researchers and other anthropologists around Australia, part of this heritage is now protected for all time.